Citation Nr: 9826708
Decision Date: 09/04/98 Archive Date: 09/14/98
DOCKET NO. 97-29 648 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to waiver of recovery of an overpayment of death
pension benefits.
ATTORNEY FOR THE BOARD
Robert E. O'Brien, Counsel
REMAND
The appellant is the widow of the veteran who had active
service from June 1951 to June 1955.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1997 decision of the
Department of Veterans Affairs (VA) Committee on Waivers and
Compromises (COW) of the VA Debt Management Center in St.
Paul, Minnesota. In June 1997 the Los Angeles Regional
Office (RO) affirmed that decision. The RO issued the
statement of the case in this appeal in June 1997. The COW
and RO decisions denied the appellant's waiver request
because she failed to submit an application for waiver within
180 days from the date of notification of the indebtedness as
required by 38 U.S.C.A. § 5302(a) (West 1991) and 38 C.F.R.
§ 1.963(b) (1997).
In the April 1997 decision, it was reported that the
appellant had been advised of the indebtedness and of her
appeal rights by a demand letter dated May 9, 1996. It was
also reported that the appellant’s request for waiver was
received on March 24, 1997. Neither of these documents is
located in the claims folder.
Thirty-eight U.S.C.A. § 5302 provides, in pertinent part,
that there shall be no recovery of payments or overpayments
(or any interest thereon) of any benefits under any of the
laws administered by the Secretary whenever the Secretary
determines that recovery would be against equity and good
conscience, if an application for relief is made within 180
days from the date of notification of the indebtedness by the
Secretary to the payee, or within such longer period as the
Secretary determines is reasonable in a case in which the
payee demonstrates to the satisfaction of the Secretary that
such notification was not actually received by such payee
within a reasonable period after such date. 38 U.S.C.A.
§ 5302(a).
In view of the foregoing, the Board believes that additional
development is required and the case is therefore REMANDED
for the following:
1. The RO should attempt to locate a
copy of the demand letter reportedly
dated May 9, 1996, and a copy of the
appellant’s request for waiver reportedly
received on March 4, 1997.
3. Thereafter, the appellant’s claim
should be re-adjudicated. If the May 9,
1996 letter or other notice of the amount
of overpayment and of her appeal rights
cannot be located, the claim should be
adjudicated on the merits. If the
determination by the RO remains adverse
to the appellant, a supplemental
statement of the case should be issued
and she should be given reasonable time
to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if otherwise in order. The appellant is not
required to take any further action until she is notified.
The Board intimates no opinion, either legal or factual, as
to any final outcome warranted.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Mark D. Hindin
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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